I'm delighted to post a summary from Professor John Harrison of his forthcoming article Vacatur of Rules Under the Administrative Procedure Act. Professor Harrison's work was recently highlighted by Professor Amanda Frost at SCOTUSBlog as one side of a debate critical to United States v. Texas, which will be argued tomorrow. (The other side of the debate is ably represented by Professor Mila Sohoni, whose work Frost also highlights.) Here is Professor Harrison's post:
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As recently discussed on this blog, many lower federal courts take the position that they are authorized to give a remedy that vacates an agency regulation. Vacatur of a regulation deprives the regulation of binding legal force, as vacatur of a lower court's judgment by an appellate court deprives the lower court's judgment of binding force. Vacatur is distinct from an injunction against enforcement of a regulation, which operates on the defendant but not on the content of the law, and from a declaratory judgment, which conclusively states the parties' legal relations as they exist, without changing those relations. The standard justification for vacatur is that it is called for by section 706(2) of the APA, which directs reviewing courts to "hold unlawful and set aside" certain agency actions that it describes, such as agency action that is "contrary to constitutional right, power, privilege, or immunity." 5 U.S.C. § 706(2).
